On Thursday April 16th, we hosted a webinar for ASB practitioners called: How to be more successful in Court with ASB Cases. To download the webinar click here.
Whiteheads Solicitors Managing Director Peter Whitehead points out some of the challenges that Judges face in dealing with ASB cases and will gives hints and tips for getting the most out of the Courts.
Whilst not being an apologist for the Ministry of Justice it is only realistic to point out some of the challenges that Judges face in dealing with ASB cases as well as the often poor practices that are embedded in the judicial system.
1) The funding crisis has led to Court closures and reduced staffing placing more pressure on the remaining facilities and judiciary with longer waiting times.
2) Judges are generalists not specialists and receive limited training. They have long depended on the assistance of advocates who bring their specialist knowledge to the Court hearing. But cuts in legal aid means more litigants in person who take more time in Court and delay case progress.
Meeting the challenges
Fail to prepare – prepare to fail
1) It is important that staff preparing and presenting cases have a good understanding of the law underpinning their case and a good grasp of the applicable Court Procedures. The relevant legislation is all available on gov.uk and the rules on the Ministry of Justice website.
2) When preparing documentation whether it is a claim form or witness statement concentrate on producing a chronological narrative that:
- Introduces the parties (main characters)
- Sets out a clear story of events
- Makes it absolutely clear what order is wanted and why
When a document is complete re-read it or, better still, get a colleague to read it to see if it meets those requirements.
Lack of witnesses?
Do not overlook the value and importance of hearsay evidence a series of meticulously prepared anonymous statements can get both injunction and possession applications home and dry. The Court of Appeal upheld an Order made on such evidence (Incommunities v Boyd).
Is the Judge being unreasonable?
As we know the vast majority of possession claims require the landlord to prove that it is reasonable “for an order to be made”. The new legislation has introduced a new absolute ground which will remove judicial discretion in cases e.g. where an injunction has been breached. The Court will only be able to postpone possession for up to 6 weeks.
Getting the result you want
Judges get things wrong and the equivalent of complaints procedure are what in legal circles are called “appeals”. Think about it for a moment……………a significant portion of the civil justice system is there to correct decisions made by Judges lower down the chain, for example, District Judge makes a decision that can be appealed to the Circuit Judge from there to the High Court and then to the Court of Appeal and then the Supreme Court.
If the result is not what you want be prepared to ask for permission to appeal. If granted it does not commit you to appealing, but does leave the door open so you can go back to the office and get advice from colleagues or your lawyers.
To download the webinar: How to be more successful in Court with ASB Cases click here.